State budget provision would allow some felonies to be erased

Hundreds of Wisconsin felons might be able to erase their convictions under a provision buried in Gov. Jim Doyle's budget bill.

Supporters say it provides a second chance for youthful offenders who have made mistakes, as well as providing a useful tool for prosecutors.

But opponents say it lets people off the hook for serious crimes and deprives the public of its fundamental right to know.

The provision, which passed the Legislature's Finance Committee 9-6 earlier this week, would expand judges' authority to expunge criminal convictions. The current law, in effect since 1975, allows judges to expunge a first-time misdemeanor conviction of perpetrators who were 21 or younger. The budget provision would expand that authority, increasing the maximum age to 25 and including some felonies. It also would remove any trace of the conviction from the public record.

"The intent is to give people a chance to move past a mistake and not have something like that on their record holding them back from a constructive life," said Doyle spokesman Lee Sensenbrenner. "We want to give them an opportunity to move forward with a clean slate."

The law is intended to be used by prosecutors during plea negotiations, he said, once per defendant. It should not be used for crimes such as drunken driving, he said, in which the number of past offenses affects sentencing.

Critics say those intentions aren't specified clearly enough. For example, Republicans tried to put forth a motion that would spell out that only first offenses are eligible, but it failed, as did an effort to require that an expunged crime be put back on the record of anyone who committed a subsequent crime, said state Rep. Phil Montgomery (R-Green Bay). That means that, theoretically, multiple crimes could be erased for the same person, as long as they all were committed at age 25 or under.

The bill specifies that only nonviolent felonies punishable by six years' imprisonment or less would be eligible for expungement and lists about two dozen crimes in that category that can't be erased. But identity theft, basic arson and drug dealing would all be fair game, Montgomery said. And while the governor hopes district attorneys won't ask judges to expunge drunken-driving cases, according to what's written in the budget bill, they could.

"These aren't just kids making mistakes. These are serious crimes with serious consequences, and these crimes should not be expunged," said state Sen. Alberta Darling (R-River Hills). "It's a double standard that I think is wrong. It sets too low of expectations."

State Rep. Pedro Colón (D-Milwaukee) said such fears are overblown.

"If the person commits criminal behavior that is obviously awful to you, it is obviously awful to the judge, so there will be no expungement," he said. "We're talking about taking the cases which are the exception and allowing those people to come back to the court, get the jobs and continue with their lives after they've paid their debt to society."

District attorneys around the state tend to favor the change because it gives them leverage in plea negotiations, said Langlade County District Attorney Ralph Uttke.

"It gives us tools to accomplish things we want to accomplish as part of our sentencing," he said.

For example, criminals who have been promised expungement have some incentive to remain crime-free and to fulfill court requirements such as paying restitution and getting drug treatment, thus reducing recidivism, he said.

Removing all records of expunged cases from the state's online court record system would help prevent employers from discriminating based on criminal history, which occurs despite being illegal in Wisconsin, he said.

"A more accessible job market makes it more likely they will not be involved in future criminal activity," he said.

Records of the crimes would remain accessible to law enforcement and court officials through other means, such as the FBI's National Crime Information Center database, officials said.

Bill Lueders, president of the Wisconsin Freedom of Information Council, said there are better ways to prevent discrimination than denying access to information.

"The whole premise that there's nothing the State of Wisconsin can do to prevent employment discrimination except prevent the information from being out there, that's obnoxious," he said. "Why not try enforcing that law rather than removing information?"

Further, it is naïve to believe that no one will find out about expunged convictions simply because they have been removed from the court record, Lueders contends. The convictions will be public while the sentence is being served, thus allowing private companies to archive the information and sell it later. This will lead to the dissemination of less accurate information than the state itself could provide, he said.

A 2006 legislative committee that studied the issue recommended expanding the possibility of expungement to more offenders,while keeping the records of the entire process public, he said. That bill went nowhere.Lueders said he was dismayed that instead of trying to change the law again this session in a public forum, supporters tried to sneak it into the budget.

Montgomery agreed.

"Anytime you're trying to conceal information, that's not a good thing," he said. "Hopefully, people do go straight. I pray that they do, but you can't just say it never existed. It is part of who you are."